At what point do temporary disability (Including 4850 and IDL) benefits exhaust?

ANSWER:

By: Michael T. Bannon, Esq.

The short answer is 104 weeks total. This includes one year of 4850 (for police and fire) or IDL (for state employees). There are limited exceptions that apply in extreme situations to extend the maximum period to 240 weeks. However, the majority of injured workers are entitled to a maximum of 104 weeks, and it is strictly enforced. We have had cases where our client was in a hospital bed recovering from surgery and TD benefits were cutoff. There is absolutely no sympathy. Even in cases where delays by the Workers' Compensation insurance carrier create the need for TD benefits beyond 104 weeks, none will be provided.

The law addressing this issue is contained within Labor Code section 4656. The law does change with the date of injury. However, subsection (2) is probably the most relevant since it applies to dates of injury from 2008 to the present, and states; "Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability SHALL NOT extend for more than 104 compensable weeks within a period of five years from the date of injury" (emphasis added).

It should be noted that TD benefits will only be provided so long as your treating physician declares you to be Temporarily Disabled (TD). During the TD period, the physician is providing active treatment and allowing the injured worker to recover from the injury. TD may be either Total (TTD) or Partial (TPD). If TTD, then the injured worker is totally precluded from working in any capacity. If TPD, then the injured worker may return to work within the specific work restrictions outlined by the physician. Employers may, or may not, allow the injured work to return to work in a modified capacity if the worker is TPD. If the employer is unable to offer modified work within the restrictions, then the injured worker is simply placed on TD benefits (or 4850/IDL if eligible).

At some point in time the physician will determine that all viable treatment options have been exhausted. The injured worker is then declared "permanent and stationary” (P&S) or considered to have reached a point of maximum medical improvement (MMI). Once determined to be P&S or MMI, TD benefits are immediately terminated. This often comes to a shock to those who believe they will collect 104 weeks of TD benefits regardless of medical status.

Considering all of the above there is a very predictable question presented next. What happens now? I have exhausted 104 weeks OR I have been declared P&S/MMI. This is where the brutality of our current Workers' Compensation system is most pronounced. If you have been declared P&S/MMI and are able to return to work, then Congrats! You have successfully navigated the system and will be returning to work. If you are NOT able to return to your usual and customary duty (due to permanent work restrictions), then brace yourself! Hopefully, there is some indication of Permanent Disability (PD) so that Advances (PDA’s) may be started. However, this only pays out between $230-$300/week, which is dramatically less than TD benefits.

It must also be understood that in law enforcement there is rarely permanent modified work available. Therefore, medical retirement is the most likely reality at this juncture. However, you must keep in mind that medical retirement can take between six to nine months to be granted on average. If you are eligible, of course. This now leaves the injured worker off work, with no job to return to, and trying to survive on a fraction of their income until the disability retirement gets granted. As you can see, timing is critical on when to act. There are strategies to minimize this dilemma.

While two years may seem like plenty of time to recover from most injuries. That is not always the case. Those of you who have been injured at work can attest to the fact that obtaining medical treatment through Workers' Compensation is a ridiculously slow process. As always, this is a very complex issue and the above is just a glimpse into this particular legal issue. For further information or assistance with your claim please feel free to contact us.